Miss. Pratima Seth vs The Management Of Ansal ...
2007 Latest Caselaw 207 Del

JUDGMENT

Hima Kohli, J.

1. This writ petition is directed against the award of the Labour Court dated 22nd May, 1998 wherein it was held that the dismissal of the petitioner workman vide order dated 28th May, 1990, pursuant to an enquiry conducted against her, was not commensurate with the nature of misconduct proved against her and, therefore, the respondent management was directed to reinstate the workman with continuity in service by treating the intervening period as absence from duty as leave without pay. It was further held that the workman is not entitled to any back wages. Aggrieved by the latter part of the award, declining to grant any back wages to the petitioner workman, she has preferred the present petition.

2. The brief facts of the case are that the petitioner workman was appointed as Receptionist-cum-Telephone Operator in the year 1982 with respondent No. 3 herein, at its New Delhi office. She was dismissed from service vide order dated 28th May, 1990. She raised an Industrial Dispute which was referred to the Labour Court vide reference dated 12th August, 1991. The said reference was decided on 22nd May, 1998 by the Labour Court whereby the learned Presiding Officer came to the conclusion that though the dismissal of the petitioner workman was not commensurate with the nature of misconduct, however she was not entitled to any back wages since she had nowhere stated in her affidavit that she remained unemployed after dismissal of from service, whereas in the affidavit filed by the management it was categorically stated that the petitioner workman had been gainfully employed. The learned Presiding Officer further held that despite the fact that the petitioner workman knew very well that the management had taken the plea of gainful employment, as the copy of the affidavit filed by the management had already been supplied to the petitioner workman before the cross-examination of MW1, yet MW1 was not cross-examined on this point, which established that the petitioner workman was gainfully employed after her dismissal from the service of the respondent management. Thus, an order of reinstatement without back wages was passed in favor of the petitioner workman.

3. The entire controversy in the present case revolves around the question that whether the petitioner workman is entitled to claim and receive full back wages irrespective of whether she had pleaded or proved the fact of her unemployment. In other words, the sole question that arises for consideration in the present writ petition is as to whether the onus is on the respondent management to prove that the petitioner workman was gainfully employed, irrespective of the fact that she did not mention in her affidavit, the factum of her not being gainfully employed during the period of her termination from service.

4. In the course of arguments, learned Counsel for the petitioner workman submitted that the petitioner workman had stated in her cross-examination by the respondent management that she was not gainfully employed anywhere else. It was also stated by the learned Counsel for the petitioner workman that examination-in-chief and cross-examination are both very important parts of the pleadings and have an equal value in the eyes of law. The attention of the court was further drawn to the fact that the respondent management in their affidavit had not stated as to where the petitioner workman was gainfully employed during the period of her termination. It was also stated that once the petitioner workman had categorically stated that the petitioner workman was not being gainfully employed elsewhere in her cross-examination, the onus to prove or disprove the said fact shifted to the respondent management.

5. None has appeared for the respondent management; hence the matter is decided on the basis of the submissions made by the learned Counsel for the petitioner workman as also by perusing the pleadings of the parties. On such perusal, it transpires that the respondent management in its reply has specifically denied that it was required to discharge the onus to prove that the petitioner workman was not gainfully employed elsewhere during the period of her termination.

6. The normal rule while granting back wages is that the workman whose service has been illegally terminated shall be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. While deciding the question in hand, reliance can be placed on the judgment of a Division Bench of this Court in the case of Thankur Singh Rawat and Ors. v. Jagjit Industries Ltd. reported as (2006) I LLJ 775 Delhi wherein the court while deciding a similar question, referred to various judgments and culled out certain general principles of law which are as under:

18. ....(i) Back wages is the normal rule to follow if a wrongful retrenchment or dismissal is set aside by the Court.

(ii) There is an element of discretion in the grant of back wages which the Court has to exercise keeping in view the facts and circumstances not only of the workmen but also of the management

(iii) The question whether the workman was or was not employed is a relevant consideration while granting back wages

(iv) If the workman was gainfully employed the back wages could be fully or partly denied to him.

7. In the aforesaid case of Thankur Singh Rawat (supra), this Court was confronted with similar facts. The appellant workmen therein had not raised a plea of their unemployment during the period of their termination, and had contended that irrespective of any plea of unemployment during such interregnum period, they were entitled to reinstatement with full back wages because the onus was on the management to prove the fact of their gainful employment, which it had failed to discharge. Negating the said contention of the workmen, a Division Bench of this Court held as below:

22. If the workman does not even plead that he was unemployed. is the management then required to plead the state of employment of the workman? The Labour Court says 'No' and the writ Court accepts this answer. It is to be noted that the state of employment or unemployment of the workman is within the special knowledge of the workman and therefore it should be his first duty to make an assertion that he was unemployed. Having so asserted in his statement of claim, he may even state on oath about his state of unemployment, for nothing more is required to prove his side of the case. It will then be for the management to assert or prove if the workman was at all employed.

8. The Supreme Court held in the case of Kendriya Vidyalaya Sangathan and Anr. v. S.C. Sharma reported as :

Para 15: ...When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim...

9. In the present case also, the petitioner workman admittedly did not state in her affidavit that she remained unemployed after her dismissal from service by respondent No. 3/management. Instead, the respondent No. 3/management had categorically stated in the affidavit filed on its behalf that the petitioner was gainfully employed, on which point, the petitioner failed to even cross-examine the witness of the respondent management. In these circumstances, the order of the Presiding Officer, Labour Court to the effect that the petitioner was not entitled to back wages, cannot be assailed. If the petitioner workman wanted to claim back wages, it was for her to assert that she remained unemployed after her termination and, therefore, the initial burden was upon her. Only after such an assertion was made by her, that the onus would shift to the respondent No. 3 management to prove that she was gainfully employed elsewhere, as the workman cannot give any proof in the negative, in support of her assertion. When no such averment was made by the petitioner, the question of the management having to prove that she was gainfully employed elsewhere, did not arise. It is misconceived on the part of the petitioner to allege that her mere statement during her cross-examination that she was not gainfully employed, was sufficient to shift the onus on the respondent No. 3/management to prove that she was gainfully employed.

10. In view of the facts and circumstances of the case, and the position of law as discussed above, there is no infirmity in the award of the Labour Court. The said award is held to be valid and cogent and the writ petition is dismissed as being devoid of merits. Parties are left to bear their own costs.